Roberson v. United States Of America

Filing 7

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Roberson's 1 Motion to Vacate, Set Aside, or Correct his Sentence (2255). It is further RECOMMENDED that the Court DIRECT the Clerk to CLOSE this case and enter the approp riate judgment of dismissal. Additionally, the Court should DENY Roberson a Certificate of Appealability and in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written o bjections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 4/25/2018). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 4/11/2018. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

DERRICK ANDREW ROBERSON,
Movant,
v.

CIVIL ACTION NO.: 2:17-cv-2
(Crim. Case No.: 2:15-cr-10)

UNITED STATES OF AMERICA,
Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On January 21, 2016, this Court sentenced Derrick Andrew Roberson (“Roberson”) to
135 months’ imprisonment following his guilty plea to conspiracy to possess with intent to
distribute and distribute methamphetamine and oxycodone.

Roberson, who is currently

incarcerated at the Federal Correctional Institution in Jesup, Georgia, has now filed a Motion to
Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. (Doc. 328.) 1 Roberson
claims that errors by the Court and his trial counsel plagued his sentence.
Essentially, Roberson contends that the Court and counsel operated as if he had been
convicted of state charges that have now been dismissed and that were pending against him at the
time of his federal sentencing. However, as laid out below, the Court and counsel were well
aware that Roberson’s state charges had not yet been adjudicated at the time of his sentencing in
this case. Further, his federal sentence was not influenced by the charges pending against him in
state court. Rather, the Court based its sentence on the relevant conduct Roberson committed
1

The pertinent record documents in this case are filed on the docket of Roberson’s criminal case, United
States v. Roberson, 2:15-cr-10 (S.D. Ga., May 18, 2015), and many are not included in Roberson’s civil
docket. Thus, for ease of reference and consistency, the Court cites to Roberson’s criminal docket in this
Order and Report and Recommendation.

during his involvement in the drug distribution conspiracy charged in this federal case. Thus,
Roberson’s sentence resulted from his own admitted criminal conduct, not any errors by the
Court or his counsel. Moreover, while Roberson claims that he played a minimal role in the
offense and, thus, the Court should have reduced his sentence, the facts of Roberson’s case belie
that claim.
For these reasons, which I detail more fully below, I RECOMMEND the Court DENY
Roberson’s Motion to Vacate, Set Aside, or Correct his Sentence. Further, I RECOMMEND
that the Court DENY Roberson a Certificate of Appealability and in forma pauperis status on
appeal. The Court should DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgment of dismissal. 2
BACKGROUND
On May 18, 2015, the grand jury for this District returned a seven-count Indictment
against Roberson and eight co-Defendants. (Doc. 3.) The grand jury charged Roberson with
conspiracy to possess with intent to distribute, and to distribute, a quantity of methamphetamine
and oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count 1). (Id.) Roberson
was also charged with possessing methamphetamine with the intent to distribute on or about
January 26, 2015 (Count 3). Id. The Government asserted in its Penalty Certification that

2

Roberson is not entitled to an evidentiary hearing. Roberson has the burden of establishing the need for
an evidentiary hearing. Birt v. Montgomery, 725 F.2d 587, 591 (11th Cir. 1984). He would be entitled to
a hearing only if his allegations, if proved, would establish his right to collateral relief. Townsend v.
Sain, 372 U.S. 293, 307 (1963). “Under Rules Governing Section 2255 Cases, Rule 4(b), a district court
faced with a 2255 motion may make an order for its summary dismissal ‘if it plainly appears from the
face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not
entitled to relief.’” Broadwater v. United States, 292 F.3d 1302, 1303 (11th Cir. 2002) (per curiam).
Accordingly, no hearing is required when the record establishes that a Section 2255 claim lacks merit.
United States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984). Additionally, the Court need not hold a
hearing where the record reveals the claim is defaulted. McCleskey v. Zant, 499 U.S. 467, 494 (1991).
Roberson has not established any basis for an evidentiary hearing because the record reveals that all of the
issues he raises either lack merit or are procedurally defaulted, waived, or barred.
2

Roberson faced not more than twenty years’ imprisonment as to each of Counts One and Three.
(Doc. 4.)
Roberson and his appointed attorney, Mr. Ronald E. Harrison, II, were able to negotiate a
plea agreement with the Government whereby Roberson agreed to plead guilty to Count One and
to waive his rights to appeal and collaterally attack his sentence with limited exceptions.
(Doc. 246.) The Government agreed to dismiss Count Three, to not object to a recommendation
from the probation officer that Roberson receive a three-level reduction for acceptance of
responsibility, to not file a sentencing enhancement pursuant to 28 U.SC. § 851, to not seek
forfeiture of property as to Roberson, and to recommend that Roberson not receive an
enhancement in his Guidelines range for his role in the offense pursuant to U.S.S.G. § 3b1.1.
(Id.)

Further, if Roberson decided to cooperate, he agreed to provide full and truthful

information to the Government. (Id.) The Government agreed that, if Roberson chose to
cooperate, it would consider whether Roberson’s cooperation with the Government qualified as
“substantial assistance” and warranted the filing of a motion for downward departure. (Id.) In
the Plea Agreement, Roberson agreed that he “has had the benefit of legal counsel in negotiating
this agreement. Defendant believes that his attorney has represented him faithfully, skillfully,
and diligently, and he is completely satisfied with the legal advice given and the work performed
by his attorney.” (Id. at p. 9.)
On October 14, 2015, Roberson appeared before the Honorable Lisa Godbey Wood for a
change of plea, or Rule 11, proceeding. (Doc. 331.) At the hearing, Judge Wood engaged in an
extensive plea colloquy with Roberson. She explained to Roberson that the decision to plead
guilty was an important one, that the decision was entirely his decision, and that she wanted to be
certain that Roberson understood all of the important considerations that go into the decision.

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(Id. at pp. 2–3.) Judge Wood inquired whether anyone had forced Roberson to plead guilty, and
he said no one had done so and that pleading guilty was what he wanted to do. (Id. at pp. 3–4.)
Judge Wood had Roberson placed under oath before asking him a series of questions.
(Id.) He was able to recount his personal information, including his age, the ages of his children,
and his residence. (Id. at pp. 4–5.) Roberson testified that he reached the ninth grade in school
and received his General Equivalency Degree and some technical school training, and that he
held a number of jobs. (Id. at p. 5.) Roberson then stated that he had no physical or mental
injury or disability, and that though he took arthritis medication and a muscle relaxer, he had not
had any alcohol or drugs in the prior forty-eight hours. (Id. at p. 6.)
Judge Wood explained to Roberson that he was presumed innocent and the Indictment
was not evidence of his guilt. (Id. at pp. 6–7.) She also explained that he did not have to plead
guilty, and if he chose to persist in his not guilty plea, he would have the right to a public and
speedy trial by jury, a presumption of innocence during that trial, and the assistance of counsel
through every phase of the case. (Id. at pp. 7–8.) Judge Wood told Roberson that if he went to
trial he could see, hear, confront, and cross-examine the Government’s witnesses and evidence,
call witnesses on his behalf, and testify himself or remain silent. (Id.) Judge Wood cautioned
Roberson he would be waiving these rights if he pleaded guilty. (Id. at p. 8.) She explained that,
if she accepted his guilty plea, there would be no right to trial of any kind and all that would
remain of his case would be the sentencing phase. (Id. at pp. 8–9.) Roberson stated that he
understood, and he testified that he had no questions regarding the rights he was waiving. (Id.)
Roberson also stated he and Mr. Harrison reviewed the Indictment together; that he had
the opportunity to talk to Mr. Harrison about the facts of his case, the underlying conduct, and
the proposed plea agreement; and that Mr. Harrison had discussed the law and the facts

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pertaining to his case. (Id. at p. 9.) Roberson specifically stated that he and Mr. Harrison had
discussed in general terms the application of the Sentencing Guidelines. (Id.) Roberson testified
that he was satisfied with Mr. Harrison’s services and that he had no complaints about Mr.
Harrison whatsoever. (Id. at p. 10.)
Judge Wood reviewed Count One of the Indictment with Roberson and discussed the
essential elements of the crimes for which he was charged and what the Government would have
to prove if he went to trial. (Id. at pp. 10–12.) Roberson responded that he understood these
elements and what the Government would have to prove if he went to trial and that by pleading
guilty he would admit that those elements are satisfied. (Id. at pp. 11–12.) Judge Wood advised
Roberson of the penalties she could impose on the count to which he was pleading guilty. (Id. at
p. 12.) She stated, “Now the maximum possible penalty that I could ever impose for a violation
of that particular offense is not more than 20 years[’] imprisonment, a fine of not more than a
million dollars, at least three years[’] supervised release, and a $100.00 mandatory special
assessment. Do you understand those are the maximum possible penalties that I could impose?”
(Id.) Roberson responded that he understood. (Id.) Moreover, Judge Wood explained to
Roberson that, in imposing a sentence upon him, she would have to take into consideration the
advisory Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553, and she outlined
the factors she would consider at sentencing. (Id. at pp. 12–13.) She explained to Roberson that
she would consider, “[his] role, what [he] did in the case, [his] criminal history or lack thereof
and whether [he] came here and told the truth and accepted responsibility for [his] actions.” (Id.
at p. 13.) Judge Wood asked Roberson if he had any questions about sentencing, and he
responded that he did not. (Id.) Roberson testified that no one had promised him an exact
sentence. (Id.) Judge Wood explained that all that anyone could give him is a “best guess” or

5

“best estimate” of what his Guidelines range would be, and that such an estimate would in no
way bind the Court. (Id.)
Judge Wood affirmed with Roberson that he had given Mr. Harrison permission to
negotiate a plea agreement with the Government. (Id. at p. 14.) She then asked the Assistant
United States Attorney (“AUSA”) to summarize the provisions of that plea agreement. AUSA
Carlton Bourne stated:
Your Honor, the Government agrees not to object to a recommendation from
Probation that the Defendant receive a three-level reduction for acceptance of
responsibility based on the timeliness of the Defendant’s plea and provided he
truthfully admits the conduct comprising the offense of conviction. The
Government agrees to consider whether his cooperation qualifies as substantial
assistance and warrants the filing of a motion for downward departure or a motion
to reduce sentence. The Government agrees not to file a 21 USC 851
enhancement if applicable. The Government agrees not to seek forfeiture in this
case regarding any property belonging to the Defendant and the Government
agrees to recommend that no role enhancement pursuant to the sentencing
guidelines be applied to this Defendant.
The Defendant agrees to plead guilty to Count 1. The Government will dismiss
the remaining counts of the indictment against the Defendant. The Defendant
agrees to acknowledge at the time of the plea the truth of the factual basis
contained in the plea agreement. Defendant agrees to pay on the date of
sentencing any assessments imposed by The Court. He agrees to provide full,
complete, candid and truthful cooperation to the Government. The Defendant
agrees to waive his right to appeal on any grounds with only three exceptions and
the Defendant entirely waives his right to collaterally attack his conviction and
sentence on any ground and by any method including a 2255 motion with one
exception, and that’s the extent of the plea agreement, Your Honor.
(Id. at pp. 14–15.) Judge Wood asked Roberson if AUSA Bourne’s summarization of the plea
agreement was consistent with the plea agreement he signed, and he stated it was. (Id. at p. 15.)
Roberson also stated he read the plea agreement before he signed the agreement. (Id.) Roberson
reaffirmed that no one had made him any promises regarding the outcome of his case other than
the provisions contained in the plea agreement. (Id.)

6

Judge Wood then specifically addressed the direct appeal waiver with Roberson, stating
the following:
I do want to pick back up on something that Mr. Bourne mentioned, and that is
contained in this plea agreement that you’re offering is certain waiver of appellate
rights. It states “Defendant entirely waives his right to a direct appeal of his
conviction and his sentence.” The only exceptions are three; that is, if but only if
one of these three things were to occur you would get a direct appeal right. If not,
by virtue of this plea agreement, you waive all other direct appeal rights. The
only three exceptions are, Number 1, if I were to sentence you above the statutory
maximum, you could appeal that directly. Number 2, if I were to sentence you
above the advisory guideline range as found by me, you could appeal that
directly, or Number 3, if the Government were to file a direct appeal, then you too
could file a direct appeal, but otherwise, pursuant to this plea agreement, you
waive all other direct appellate rights; understand?
(Id. at pp. 15–16.) Roberson stated he understood the appeal waiver provision. (Id. at p. 16.)
Judge Wood also explained that the proposed plea agreement contained a waiver of certain of
Roberson’s collateral attack rights. She explained:
Also contained in the agreement is a waiver of certain collateral attack rights. It
states “Defendant entirely waives his right to collaterally attack his conviction and
sentence on any ground and by any method, including but not limited to a 28 USC
Section 2255 motion.” The only exception to that waiver is you do retain the
right to collaterally attack based on a claim of ineffective assistance of counsel;
understand?
(Id.) Roberson replied that he understood the collateral attack waiver provision and that he did
not have any questions about it. (Id. at pp. 16–17.)
Judge Wood asked Mr. Harrison and AUSA Bourne whether they were aware of any
impropriety on the part of the Government in handling Roberson’s case, and they both responded
in the negative. (Id. at p. 17.) Judge Wood then asked Roberson whether he wished to still plead
guilty to Count One of the Indictment because he was in fact guilty of that count, and Roberson
answered in the affirmative. (Id.) Judge Wood also asked Roberson whether he understood the
rights and privileges he was waiving if she accepted his plea, and he said he did. (Id.)

7

Judge Wood determined that Roberson decided to plead guilty knowingly, intelligently,
and voluntarily. (Id. at pp. 17–18.) Mr. Roberson affirmed that the medication he was taking did
not interfere with this thought processes. (Id. at p. 18.) Judge Wood also found that he had the
services of “of an excellent defense attorney who has gone over all the requisite pleadings and
topics with him.” (Id.) Roberson responded in agreement with Judge Wood’s conclusions. (Id.)
Kevin Waters, a Task Force Officer with the United States Drug Enforcement Agency,
provided the Government’s factual basis for the plea. (Id. at pp. 19–20.) Waters testified that
during the year 2013, agents investigated information that codefendants Bobby Courson and
Kalvin Smith were trafficking methamphetamine in Coffee County and Jeff Davis County,
Georgia.

(Id.) The investigation included intercepted phone calls during which Roberson

discussed drug transactions with Smith as well as a seizure of methamphetamine from
Roberson. (Id.)
Upon questioning from Judge Wood, Roberson testified that he did not dispute any of the
testimony given by Waters, and he admitted to the truth of Waters’ testimony. (Id. at p. 20.)
Judge Wood found that there was a factual basis for the plea of guilty, accepted Roberson’s plea,
and adjudged him guilty of Count One of the Indictment. (Id.) Judge Wood advised Roberson
that the Probation Office would prepare a Pre-Sentence Investigation report (“PSI”) and that the
Court would schedule a sentencing hearing after the PSI was disclosed to the Government and
the defense. (Id. at pp. 20–21.)
Prior to Roberson’s sentencing hearing, United States Probation Officer Paul Skarupa
prepared a PSI. Probation Officer Skarupa outlined Roberson’s offense conduct and criminal
history and calculated Roberson’s advisory Guidelines range. Skarupa detailed Roberson’s
involvement in the Courson Drug Trafficking Organization (“DTO”). (PSI, ¶¶ 6–12.) Skarupa

8

explained that the investigation of the organization involved numerous investigative techniques,
including witness interviews, confidential sources, surveillance, and the monitoring of telephone
communications. (Id. at ¶ 6.) The investigation revealed that Roberson participated in the DTO
by selling methamphetamine (“ice”) to Defendant Kalvin Smith. (Id.)
On August 1, 2014, law enforcement officers conducted a traffic stop of Roberson after
observing him leave a “suspected drug house in Clayton County, Georgia.” (Id. at ¶ 7.) At the
initiation of the traffic stop, Roberson admitted that he had a loaded firearm in his driver’s side
door. (Id.) During a search of Roberson’s vehicle, officers located a loaded .40 caliber pistol,
1,205 grams of ice, and $1,495.00. (Id.)
Even after this search and the resulting arrest on state charges, officers intercepted phone
calls wherein Roberson discussed the sale of methamphetamine and prescription drugs with
Smith. (Id. at ¶ 9.) After Smith was arrested, he stated to law enforcement that he purchased up
to 0.5 ounces of ice from Roberson on a weekly basis. (Id. at ¶ 10.)
After Roberson’s infant daughter tested positive for methamphetamine at birth, law
enforcement officers assisted members of the Telfair County Department of Children’s Services
with a welfare check at Roberson’s home. (Id. at ¶ 11.) After Roberson consented to a search of
his property, officers located “a total of 29.8 grams of ‘ice’ inside five plastic bags; a loaded .32
caliber pistol; two smoking devices; several additional small plastic bags; a digital scale;
surveillance equipment; cameras with night vision capabilities; and various items used to
manufacture methamphetamine.” (Id.)
For Guidelines purposes, based on the entirety of the investigation, including the phone
calls and seizures, Probation Officer Skarupa “conservatively” attributed Roberson with “1.4
kilograms of ‘ice’ and possessing two firearms in connection with quantities of drugs.” (Id. at

9

¶ 12.) Probation Officer Skarupa explained that, under U.S.S.G. § 2D1.1, an offense involving at
least 500 grams but less than 1.5 kilograms of methamphetamine has a base offense level of 34.
(Id. at ¶ 17.)

Skarupa further concluded that a two-point offense level enhancement was

warranted under U.S.S.G. § 2D1.1(b)(1) because Roberson possessed a dangerous weapon. (Id.
at ¶ 18.) Officer Skarupa did not identify any need for a role in the offense adjustment. (Id. at ¶
20.) However, Roberson received a three-level reduction for his acceptance of responsibility
resulting in a total offense level of 33. (Id. at ¶¶ 24–26.)
Skarupa identified pending state charges against Roberson related to the instant
Indictment.

(Id. at ¶¶ 30, 31.)

Those charges included trafficking methamphetamine and

possession of a weapon during commission of a crime in Clayton County, Georgia, and
possession of methamphetamine and possession of a weapon during the commission of a crime
in Telfair County, Georgia. (Id.) However, those offenses were noted as “pending,” and
Roberson received no criminal history points for them. (Id.) Indeed, because Roberson had no
recent convictions, he was not given any criminal history points, resulting in a criminal history
category of I, the lowest under the Guidelines. (Id. at ¶ 29.) According to the PSI, Roberson’s
Guidelines range for imprisonment was 135 to 168 months. (Id. at ¶ 51.) Officer Skarupa
identified Roberson’s substantial assistance to authorities as a factor that may warrant downward
departure from the Guidelines range under Section 5K1.1. (Id. at ¶ 66.) According to Skarupa,
while Mr. Harrison submitted numerous objections to the original draft of the PSI, those
objections were resolved by the final draft or withdrawn. (PSI, Addendum.)
Roberson appeared before Judge Wood for a sentencing hearing on January 14, 2016.
(Doc. 290.) At that hearing, Judge Wood heard from Roberson, Roberson’s counsel, and counsel
for the Government regarding Roberson’ potential sentence. (Doc. 330.) This colloquy began

10

by Judge Wood asking Roberson if he had an opportunity to read the PSI and discuss it with Mr.
Harrison. (Id. at pp. 2–3.) Mr. Roberson responded that he had. (Id. at p. 3.) Judge Wood
asked, “Are there any objections remaining to either the factual statements contained in that
report or to the probation officer’s application of the advisory guidelines?”

(Id. at p. 3.)

Roberson responded, “No, ma’am.” (Id. (emphasis added).) Mr. Harrison then confirmed that
there were no objections to either the factual accuracy of the PSI or the Probation Officer’s
application of the Guidelines.

(Id.)

There being no objections from the Government or

Roberson, Judge Wood adopted the PSI’s findings of fact and conclusions regarding the advisory
Guidelines range. (Id.) In accordance with the PSI, Judge Wood determined that Roberson’s
offense level was thirty-three and his criminal history category was one.

(Id.) Thus, the

Guidelines called for a sentence between 135 to 168 months in prison. (Id.)
Mr. Harrison identified Roberson’s mother and father that were in the courtroom in
support of Roberson and offered arguments in mitigation of the sentence. (Id. at pp. 3–9.) Mr.
Harrison emphasized Roberson’s cooperative nature, his contrition, his work history, his lack of
criminal history, and his struggles with substance abuse. (Id.) Mr. Harrison also argued that
Roberson was not a “heavy volume trafficker” and that he instead only dealt low end amounts of
ice to support his own addiction. (Id. at p. 6.) He also asked that the Court vary below the
Guidelines range because of the disparity between the Guideline calculation applicable to ice
versus the calculation applicable to substances that contain a mixture of methamphetamine. (Id.
at pp. 7–8.) Mr. Harrison argued that the Court sentence Roberson to 100 months’ imprisonment
particularly given Roberson’s role in the conspiracy. (Id. at p. 9.) In response, AUSA Bourne
argued, among other things, that despite Roberson’s minimal criminal history, he “was a fairly
large dealer for this area, Your Honor. He was one of the suppliers for Kalvin Smith.” (Id. at

11

pp. 10–11.) Judge Wood then provided Roberson an opportunity to address the Court, and he
stated, “I just want to take the punishment you give and get it over with and get back to my kids
and my family, put all this behind me.” (Id. at p. 11.)
Judge Wood then stated that she had listened to all of the information that had been
presented, including everything stated at the sentencing hearing and the PSI. (Id. at pp. 11–12.)
Based on all of that information and consideration, Judge Wood pronounced a sentence at the
low end of the Guidelines range, 135 months’ imprisonment. (Id. at p. 12.) Judge Wood
explained that what drove the sentence was the “stunning amount of that very dangerous drug”
that Roberson possessed but that she sentenced him at the low end of his Guidelines range due to
his “very paltry criminal history.” (Id.) Judge Wood advised Roberson that he waived his right
to appeal with limited exceptions, pursuant to his plea agreement, but advised Mr. Harrison to
review the notice of post-conviction obligation with Roberson. (Id. at pp. 13–14.)
On January 20, 2016, Mr. Harrison filed a Post-Conviction Consultation Certification.
(Doc. 293.) That certification, signed by both Roberson and Mr. Harrison, stated that Mr.
Harrison explained to Roberson the appellate process, advised him of his right to appeal, and
discussed the advantages and disadvantages of filing an appeal.

(Id.)

Mr. Harrison and

Roberson also certified that Mr. Harrison thoroughly inquired of Roberson whether he wanted to
file an appeal and that Roberson
decided not to file an appeal, and [Mr. Harrison has] explained to him/her the
consequences of failing to do so. Those consequences include the waiver of
his/her right to complain about the process that led up to his/her conviction,
including in the future, should he/she decide to seek any form of habeas corpus,
28 U.S.C. § 2255, or other judicial relief from the conviction.
(Id.) Roberson did not file a direct appeal of his conviction or sentence. On May 12, 2016,
Roberson filed a Motion to Reduce his sentence based on Amendment 782’s revision to the

12

Guidelines drug quantity table. (Doc. 316.) The Court denied that Motion on May 13, 2016,
because Roberson was sentenced after the drug quantity table was amended. (Docs. 317, 317-1)
DISCUSSION
Roberson filed the instant Section 2255 Motion on January 9, 2017.

(Doc. 328.)

Roberson raises four arguments in support of his Motion: (1) that he received enhancements in
his sentence for the weapons charges against him in the Superior Court of Clayton County and
(2) Superior Court of Telfair County despite the fact that he had not been convicted of those
charges and the State subsequently nolle prossed those charges, (id. at pp. 5–9, 13–15); (3) that
Mr. Harrison rendered ineffective assistance by failing to object to the alleged sentencing
enhancements based on the charges in Clayton County and Telfair County, (id. at pp. 10–12);
and (4) that he is entitled to a minor role participant reduction given retroactive changes to the
Sentencing Guidelines, (id. at pp. 16–19).
I.

Roberson’s Claim that the Court Erroneously Enhanced his Sentence for Possession
of a Firearm due to Charges Pending against him in Clayton County and Telfair
County
A.

Roberson’s Firearm Enhancement Claims fail on the Merits

Roberson claims that the Court somehow enhanced his sentence because he had charges
pending against him in Clayton County and Telfair County and that the Court operated under the
misimpression that he had been found guilty of those charges. The record in this case entirely
contradicts this claim. The PSI made abundantly clear that the Clayton County and Telfair
County cases were “pending charges.” (PSI, ¶¶ 30, 31.) Indeed, as to the Telfair County
charges, the PSI “noted that these charges are scheduled to be dead docketed upon sentencing in
the instant matter.” (Id. at ¶ 31.) Probation Officer Skarupa assigned no criminal history points
whatsoever for these charges and assigned Roberson a criminal history score of “zero.” (Id. at ¶

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29.) At the sentencing hearing, after Roberson himself stated that he had no objections to the
factual statements or application of the Guidelines in the PSI, Judge Wood adopted those
statements and application. (Doc. 330, p. 3.) Mr. Harrison, AUSA Bourne, and the Court
repeatedly stated during the sentencing hearing that Roberson had no criminal history points or
no criminal history to speak of. Indeed, when announcing the sentence, Judge Wood reasoned
that Roberson’s lack of criminal history warranted a sentence at the low end of his Guidelines
range. (Id. at p. 12.) Thus, Roberson’s argument that the Court operated as if he had been
convicted of the charges in Clayton County and Telfair County lacks any support or credibility.
Roberson did receive a two-level enhancement in his total offense level for possessing a
firearm during his participation in the drug trafficking conspiracy. (PSI, ¶ 18.) He apparently
operates under the misimpression that he received this two-level enhancement because the
charges pending against him in Clayton County and Telfair County included possession of a
weapon during the commission of a crime. The Court did not base the enhancement on the
nature of Roberson’s state charges. Rather, the Court increased Roberson’s total offense level by
two due to his relevant conduct as to the crime he pleaded guilty to in this Court.
In calculating Roberson’s Guideline range, including whether his offense level should be
increased for possession of a firearm, this Court was required to consider all of Roberson’s
relevant conduct. U.S.S.G. § 1B1.3(a)(2); United States v. Siegelman, 786 F.3d 1322, 1332–33
(11th Cir. 2015) (“[R]elevant conduct is broadly defined to include both uncharged and acquitted
conduct that is proven at sentencing by a preponderance of the evidence.” (citation omitted)).
When considering relevant conduct, the Court must consider all acts and omissions committed,
aided, abetted, counseled, commanded, induced, procured, or willfully caused by Roberson.
U.S.S.G. § 1B1.3(a)(1)(A). Roberson is responsible for all acts and omissions that were part of

14

the “same course of conduct or common scheme or plan as the offense of conviction.” Id.
§ 1B1.3(a)(2). Offenses are part of a common scheme or plan if they are substantially connected
to each other by at least one common factor, such as common victims, common accomplices,
common purpose, or similar modus operandi. Id. § 1B1.3 cmt. n.5(B)(i). Offenses that do not
qualify as part of a common scheme or plan may nonetheless qualify as part of the same course
of conduct if they are sufficiently connected or related to each other as to warrant the conclusion
that they are part of a single episode, spree, or ongoing series of offenses. Id. § 1B1.3 cmt.
n.5(B)(ii). Roberson’s relevant conduct also includes the acts that his coconspirators took during
the conspiracy, in preparation for the conspiracy, or in the course of attempting to avoid
detection that were “(i) within the scope of the jointly undertaken criminal activity, (ii) in
furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that
criminal activity.” Id. § 1B1.3(a)(1)(B). The Eleventh Circuit Court of Appeals “broadly
interprets the provisions of the relevant conduct guideline.” United States v. Behr, 93 F.3d 764,
765 (11th Cir. 1996) (per curiam) (citation omitted).
In regard to drug trafficking defendants such as Roberson, the United States Sentencing
Guidelines recommend that the Court increase the defendant’s base offense level by two levels
“[i]f a dangerous weapon (including a firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “The
enhancement for weapon possession [] reflects the increased danger of violence when drug
traffickers possess weapons.” U.S.S.G. § 2D1.1 cmt. n.11(A). “The enhancement should be
applied if the weapon was present, unless it is clearly improbable that the weapon was connected
with the offense. For example, the enhancement would not be applied if the defendant, arrested
at his residence, had an unloaded hunting rifle in the closet.” Id.

15

As with all sentencing enhancements, the Government bears the burden of proof to
establish the evidence necessary for a Section 2D1.1(b)(1) enhancement by a preponderance of
the evidence. United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). “To justify a
firearms enhancement, the government must either establish by a preponderance of the evidence
that the firearm was present at the site of the charged conduct or prove that the defendant
possessed a firearm during conduct associated with the offense of conviction.” United States v.
Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006) (citing United States v. Audain, 254 F.3d 1286,
1289 (11th Cir. 2001)). “If the government is successful in meeting this initial burden, then the
evidentiary burden shifts to the defendant, who must demonstrate that a connection between the
weapon and the offense was ‘clearly improbable.’” United States v. Grimes, 705 F. App’x 897,
900 (11th Cir. 2017) (per curiam) (citing Stallings, 463 F.3d at 1220; U.S.SG. § 2D1.1 cmt.
n.11(A)). The Eleventh Circuit has held that a proximity between guns and drugs, alone, is
sufficient for the Government to meet its burden as to a Section 2D1.1(b)(1) firearms
enhancement.

United States v. Carillo-Ayala, 713 F.3d 82, 91–92 (11th Cir. 2013).

For

example, the firearm enhancement was appropriately applied where a gun was recovered in the
same room as scales, a bag containing cocaine residue, and a large amount of cash. United
States v. Hall, 46 F.3d 62, 63 (11th Cir. 1995); see also United States v. Smith, 127 F.3d 1388,
1389–90 (11th Cir. 1997) (per curiam) (defendant’s possession of firearm upon his arrest for
offense charged in first count, at which time he also possessed crack cocaine that led to second
count, was “relevant conduct” that warranted enhancement of his base offense level); United
States v. Hansley, 54 F.3d 709, 716 (11th Cir. 1995) (firearm enhancement proper where “agents
found a firearm and other drug-related items in [defendant’s] residence, where he engaged in
conspiratorial conversations”).

16

In this case, Roberson’s relevant conduct clearly reveals that he not only dealt drugs but
also possessed a firearm in close proximity to his drugs. Roberson pleaded guilty to Count One
which charged him with participating in a conspiracy to distribute and possess with intent to
distribute drugs from on or about 2013 to late April 2015. (Doc. 3, pp. 1–2.) As laid out in the
PSI, during this time period, Roberson was found to be in possession of a loaded pistol and drugs
on two occasions. First, on August 1, 2014, officers located a loaded .40 caliber pistol in the
driver’s side door of his vehicle along with 1,205 grams of ice and $1,495.00. (PSI, ¶ 7.) Then,
on January 26, 2015, a search of Roberson’s residence uncovered a loaded .32 caliber pistol, 29.8
grams of ice, and several tools of the drug trade including a digital scale and smoking devices.
(Id. at ¶ 11.) Roberson readily admitted to the factual accuracy of these statements at his
sentencing hearing. (Doc. 330, p. 3.) In other words, by Roberson’s own admission, a firearm
was present at the site of his charged conduct, and he possessed a firearm during conduct
associated with the conspiracy. Stallings, 463 F.3d at 1220.
Roberson’s Section 2255 claims could be broadly construed to argue that the Court did
not have sufficient proof that he possessed a firearm during his participation in the drug
distribution conspiracy. This putative claim is without merit. A sentencing court “may consider
all relevant information, regardless of its admissibility under the rules of evidence.” United
States v. Onofre-Segarra, 126 F.3d 1308, 1310 (11th Cir. 1997) (citations omitted). Relevant
information includes evidence presented during the sentencing hearing. United States v. Louis,
559 F.3d 1220, 1224 (11th Cir. 2009). “[A] court may rely on hearsay at sentencing, as long as
the evidence has sufficient indicia of reliability, the court makes explicit findings of fact as to
credibility, and the defendant has an opportunity to rebut the evidence.” United States v. Mathis,
710 F. App’x 396, 399 (11th Cir. 2017) (per curiam) (quoting United States v. Anderton, 136

17

F.3d 747, 751 (11th Cir. 1998)). In order to rely upon hearsay at sentencing, the statements need
only to have a “minimal indicia of reliability” and, when the reliability of the information is
apparent from the record, the sentencing judge need not make explicit findings regarding
reliability. Id. (citing United States v. Docampo, 573 F.3d 1091, 1098 (11th Cir. 2009); United
States v. Reme, 738 F.2d 1156, 1167 (11th Cir. 1984)). Pertinent to the case at hand, “[i]f a
defendant does not dispute facts in the [PSI], he is deemed to have admitted them and is
precluded from making ‘the argument that there was error in them.’” Id. (quoting United States
v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009)). Here, the Court had reliable information, by
way of the PSI, that Roberson twice possessed a firearm during his offense conduct. Roberson
himself readily admitted to the factual accuracy of that information at his sentencing hearing.
(Doc. 330, p. 3.) 3 Therefore, he cannot now be heard to argue that the Court did not have
sufficient proof for the Section 2D1.1(b)(1) enhancement.
The Court should also reject any claim that Roberson’s offense level should not have
been enhanced because the federal grand jury did not charge him with possession of a firearm.
Whether the Indictment charged Roberson with possession of a firearm is of no moment for
purposes of determining his relevant conduct. “Because the limits of sentencing accountability
are not coextensive with the scope of criminal liability, relevant conduct is broadly defined to
include both uncharged and acquitted conduct that is proven at sentencing by a preponderance of
the evidence.” Siegelman, 786 F.3d at 1332 (citation and internal quotation marks omitted); see
also United States v. Rodriguez, 751 F.3d 1244, 1256 (11th Cir. 2014) (“proper calculation of the
guidelines requires consideration of ‘all relevant conduct,’ not merely charged conduct” (citation
omitted)); United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006) (district courts are
3

Even now, in his Section 2255 pleadings, other than disputing his Clayton and Telfair County charges,
Roberson does not appear to dispute the factual accuracy of the PSI. (See Doc. 328, pp. 12–15.)
18

required to consider all relevant, not just charged, conduct in calculating the Guidelines range
(citations omitted)). Even where a sentencing enhancement is based on acquitted conduct, the
enhancement does not violate the Fifth Amendment Due Process Clause or the Sixth
Amendment. United States v. Faust, 456 F.3d 1342, 1347–48 (11th Cir. 2006) (citing United
States v. Booker, 543 U.S. 220, 223, 240–241, 259 (2005)); see also United States v. Rodriguez,
398 F.3d 1291, 1300 (11th Cir. 2005) (the use of extra-verdict enhancements, under an advisory
guidelines regime, is not unconstitutional).
In sum, regardless of any state charges against him, Roberson’s relevant conduct as to his
federal conspiracy conviction warranted a two-level increase in his total offense level under
U.S.S.G. § 2D1.1(b)(1). By Roberson’s own admission, he twice possessed loaded pistols along
with significant amounts of drugs which he intended to distribute. For these reasons, the Court
should DENY Roberson’s firearm enhancement claims on the merits.
B.

Roberson Cannot Raise his Guidelines Claim in his Section 2255 Motion

Moreover, even if Roberson’s claim that that the Court should not have enhanced his
offense level under Section 2D1.1(b)(1) had merit, he cannot raise that argument in his Section
2255 Motion. Section 2255 is not intended to be “a substitute for direct appeal,” and thus, nonconstitutional claims “can be raised on collateral review only when the alleged error constitutes a
‘fundamental defect which inherently results in a complete miscarriage of justice [or] an
omission inconsistent with the rudimentary demands of fair procedure.’” Burke v. United States,
152 F.3d 1329, 1331 (alteration in original) (quoting Reed v. Farley, 512 U.S. 339, 348 (1994)).
The Eleventh Circuit has recognized, “[a]ny miscalculation of the guideline range cannot be a
complete miscarriage of justice because the guidelines are advisory.” Spencer v. United States,
773 F.3d 1132, 1140 (11th Cir. 2014). Roberson’s claim that the Court improperly calculated his

19

offense level at his sentencing hearing is not a constitutional one. Further, this claim does not
indicate that he suffered a complete miscarriage of justice or that his sentencing proceeding was
tainted by an omission inconsistent with the rudimentary demands of fair procedure.
Consequently, he cannot raise the claim through Section 2255. Thus, even if Roberson’s firearm
enhancement claims had a modicum of merit, the Court must DISMISS the claims.
C.

Roberson’s Collateral Attack Waiver Bars his Claim that the Court Erred at
Sentencing

The collateral attack waiver in Roberson’s plea agreement provides yet another barrier to
this claim. It is well-settled that waiver of appeal 4 and collateral attack provisions contained in a
plea agreement are enforceable if the waivers are knowing and voluntary. United States v.
Johnson, 541 F.3d 1064, 1066 (11th Cir. 2008) (citing United States v. Weaver, 275 F.3d 1320,
1333 (11th Cir. 2001)). “‘To establish the waiver’s validity, the government must show either
that (1) the district court specifically questioned the defendant about the provision during the
plea colloquy, or (2) it is manifestly clear from the record that the defendant fully understood the
significance of the waiver.’” United States v. Cruz, 300 F. App’x 686, 688 (11th Cir. 2008)
(per curiam) (emphasis added) (quoting Weaver, 275 F.3d at 1333). “A waiver of the right to
appeal includes a waiver of the right to appeal difficult or debatable legal issues—indeed, it
includes a waiver of the right to appeal blatant error.” United States v. Howle, 166 F.3d 1166,
1169 (11th Cir. 1999). “Waiver would be nearly meaningless if it included only those appeals
that border on the frivolous.” Brown v. United States, 256 F. App’x 258, 261–62 (11th Cir.
2007) (per curiam) (citation omitted).

4

“Appeal” refers to the right to appeal or contest, directly or collaterally, a sentence. United States v.
Bushert, 997 F.2d 1343, 1345, 1350 & n.17 (11th Cir. 1993). Case law concerning waiver of a direct
appeal has also been applied to waiver of the right to collateral proceedings. See Vaca-Ortiz v. United
States, 320 F. Supp. 2d 1362, 1364–67 (N.D. Ga. 2004).
20

As laid out in detail above, Judge Wood engaged in an extensive plea colloquy with
Roberson at the Rule 11 hearing to be certain that he understood his plea agreement and that his
guilty plea was intelligent, knowing, and voluntary. Judge Wood directly advised Roberson
regarding his collateral attack waiver and specifically questioned him about it. (Doc. 331,
pp. 16–17.) She read the waiver to him, explained its plain terms, and asked if he understood it
and if he had any questions about it. (Id.) Roberson responded to Judge Wood, under oath, that
he understood the waiver to which he was agreeing and that he had no questions about it. (Id.)
When a defendant enters a guilty plea pursuant to Rule 11 proceedings, “there is a strong
presumption that the statements made during the colloquy are true” and his plea is knowing and
voluntary.

United States v. Gonzalez-Mercado, 808 F.2d 796, 800 n.8 (11th Cir. 1987).

Moreover, from the entire record, including the Rule 11 colloquy and the written plea agreement
that Roberson signed, it is “manifestly clear” that Roberson fully understood the significance of
the waiver. Having sworn under oath that he read, understood, and consented to his plea
agreement and having received the benefit of the bargain of that agreement, Roberson cannot
now dodge the agreement’s plain terms.
As Roberson’s collateral attack waiver was undoubtedly valid, the Court turns to the
question of whether the waiver covers Roberson’s argument that the Court erred by failing to give
him a downward departure for his role in the offense. Through the plain language of the collateral
attack waiver, Roberson agreed not to collaterally attack his conviction and sentence, including
through a Section 2255 Motion, “on any ground and by any method.” (Doc. 246, p. 8.) The
“only exception” allows Roberson to file claims based on ineffective assistance of counsel. (Id.)
Thus, Roberson’s collateral attack waiver clearly covers his claim that the Court erred in
calculating his Guidelines range.

21

This provides yet another reason for the Court to DISMISS Roberson’s claim that the
Court erred by increasing his Guidelines offense level for his possession of a firearm.
D.

Roberson Procedurally Defaulted his Firearms Enhancement Claims by
Failing to File an Appeal

Moreover, while Roberson now seeks to directly attack his sentence (in addition to
challenging his counsel’s performance), he has waived that attack because he did not challenge
his sentence on appeal. Indeed, he did not file any appeal in this case. In the Eleventh Circuit,
under the procedural default rule, “a defendant generally must advance an available challenge to
a criminal conviction or sentence on direct appeal or else the defendant is barred from presenting
that claim in a § 2255 proceeding.” McKay v. United States, 657 F.3d 1190, 1196 (11th Cir.
2011) (citation omitted). The procedural default rule ‘“is neither a statutory nor a constitutional
requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to
respect the law’s important interest in the finality of judgments.’” Id. (quoting Massaro v.
United States, 538 U.S. 500, 504 (2003)).
A showing of “cause and prejudice” can overcome a defendant’s default. Id. 5 More
specifically, a defendant can overcome “application of the procedural default bar ‘by show[ing]

5

“Under the actual innocence exception—as interpreted by current Supreme Court doctrine—a movant’s
procedural default is excused if he can show that he is actually innocent either of the crime of conviction
or, in the capital sentencing context, of the sentence itself.” McKay, 657 F.3d at 1196 (citing Dretke v.
Haley, 541 U.S. 386, 388 (2004)). However, the Eleventh Circuit has held that the actual innocence
exception to procedural default does not apply to a defendant’s claim that he is actually innocent of a
sentencing enhancement where that claim is based on legal, as opposed to factual, innocence. Id. at
1198–99. Further, allegations of error in the application of the Sentencing Guidelines are not
constitutional claims and they do not implicate the doctrines of “actual innocence” or “fundamental
miscarriage of justice.” Gilbert v. United States, 640 F.3d 1293, 1318–23 (11th Cir. 2011). The Eleventh
Circuit has held that a “claim that a sentencing guidelines provision was misapplied . . . is not a
constitutional claim. If it were, every guidelines error would be a constitutional error.” Gilbert, 640 F.3d
at 1321. Thus, “[i]n Gilbert and subsequent decisions, the Eleventh Circuit has made clear that an error in
application of the sentencing guidelines . . . does not constitute a ‘fundamental miscarriage of justice’ or
satisfy the ‘actual innocence’ exception to the procedural-default doctrine and are therefore subject to the
ordinary rules of procedural default, as long as the sentence imposed does not exceed the statutory
maximum sentence that would have been applied absent the error.” Allegree v. Carr, No. 2:11CV14222

cause for not raising the claim of error on direct appeal and actual prejudice from the alleged
error.’” Id. (alteration and emphasis in original) (quoting Lynn v. United States, 365 F.3d 1225,
1234 (11th Cir.2004)). To show cause for procedural default, a defendant must show that “some
objective factor external to the defense prevented [him] or his counsel from raising his claims on
direct appeal and that this factor cannot be fairly attributable to [defendant’s] own conduct.”
Lynn, 365 F.3d at 1235 (citations omitted).
Construing his claims broadly, Roberson appears to argue that the Court should excuse
his procedural fault due to Mr. Harrison’s allegedly ineffective assistance. (Doc. 328, pp. 10–
12.) To be certain, a meritorious claim of ineffective assistance of counsel can constitute cause
to excuse a procedural default. United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000).
However, as the Eleventh Circuit has explained, a defendant does not clear the procedural default
hurdle merely by invoking the phrase “ineffective assistance” or making conclusory allegations
about counsel’s performance:
In order to [excuse procedural default], however, the claim of ineffective
assistance must have merit. [Greene v. United States, 880 F.2d 1299, 1305(11th
Cir. 1989).] To determine whether it does, we must decide whether the arguments
the defendant alleges his counsel failed to raise were significant enough to have
affected the outcome of his appeal. Miller v. Dugger, 858 F.2d 1536, 1538 (11th
Cir. 1988). Appellate counsel is not ineffective for failing to raise claims
“reasonably considered to be without merit.” Alvord v. Wainwright, 725 F.2d
1282, 1291 (11th Cir. 1984).
Id.
As discussed below at length, Roberson does not raise a meritorious claim of ineffective
assistance of counsel. At the very least, it was reasonable for Mr. Harrison to consider that
TMH, 2012 WL 6042198, at *2 n.3 (M.D. Ala. Oct. 23, 2012) (citing Gilbert, 640 F.3d at 1306; McKay,
657 F.3d at 1200; Bido v. United States, 438 F. App’x 746, 748 (11th Cir. 2011); Orso v. United States,
452 F. App’x 912, 914–15 (11th Cir. 2012)), report and recommendation adopted by 2012 WL 6042196
(M.D. Ala. Dec. 4, 2012); see also Frank v. United States, No. CR 103-045, 2012 WL 12969683, at *3
(S.D. Ga. Oct. 18, 2012) (the Eleventh Circuit has rejected the notion that “actual innocence” can apply to
a Guidelines enhancement).
23

challenging Roberson’s firearms enhancement would be without merit. Further, Roberson has
failed to show that any arguments Mr. Harrison supposedly should have made would have
affected the outcome of his case.
In short, Roberson has failed to demonstrate the “cause and prejudice” necessary to
excuse his procedural default. Because he failed to directly appeal his firearm enhancement, he
cannot now claim through a Section 2255 Motion that this Court erred in its Guidelines
calculation. This provides yet another reason for the Court to DISMISS Roberson’s firearms
enhancement claims.
II.

Roberson’s Claims that Mr. Harrison Rendered Ineffective Assistance
A.

Standards for Roberson’s Ineffective Assistance Claims

Criminal defendants have a right to effective assistance of counsel at all critical stages of
the proceedings. Strickland v. Washington, 466 U.S. 668, 685–86 (1984). This right extends to
the entry of a guilty plea, Hill v. Lockhart, 474 U.S. 52, 58 (1985), and during sentencing
proceedings, Glover v. United States, 531 U.S. 198, 202 (2001). Furthermore, the right to
effective assistance of counsel includes the right to representation free from conflicts of interest.
Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980). A defendant’s guilty plea, appeal waiver, or
collateral attack waiver does not preclude an ineffective assistance of counsel claim premised on
an involuntary and unintelligent plea. United States v. Puentes-Hurtado, 794 F.3d 1278, 1281,
1285 (11th Cir. 2005).
To prevail on a claim of ineffective assistance of counsel, Roberson must demonstrate
(1) his counsel’s performance was deficient, i.e., the performance fell below an objective
standard of reasonableness, and (2) he suffered prejudice as a result of that deficient
performance. Strickland, 466 U.S. at 685–86. “If a petitioner cannot satisfy one prong, we need

24

not review the other prong.” Duhart v. United States, 556 F. App’x 897, 898 (11th Cir. 2014).
Thus, if Roberson cannot show prejudice, the Court need not determine whether his allegations
show that his counsel’s performance fell below an objective standard of reasonableness.
The deficient performance requirement concerns “whether counsel’s advice was within
the range of competence demanded of attorneys in criminal cases.” Hill, 474 U.S. at 56. There
is a strong presumption that counsel’s conduct fell within the range of reasonable professional
assistance. Davis v. United States, 404 F. App’x 336, 337 (11th Cir. 2010) (per curiam) (citing
Strickland, 466 U.S. at 686). “It is petitioner’s burden to ‘establish that counsel preformed
outside the wide range of reasonable professional assistance’ by making ‘errors so serious that
[counsel] failed to function as the kind of counsel guaranteed by the Sixth Amendment.’”
LeCroy v. United States, 739 F.3d 1297, 1312 (11th Cir. 2014) (alteration in original) (quoting
Butcher v. United States, 368 F.3d 1290, 1293 (11th Cir. 2004)). “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts
of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690.
Further, retrospective judicial scrutiny of counsel’s performance “must be highly deferential”
and must “eliminate the distorting effects of hindsight.” Id. at 689. “In evaluating performance,
‘counsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.’” LeCroy, 739 F.3d at 1312
(quoting Strickland, 466 U.S. at 690).
“Showing prejudice requires petitioner to establish a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
(citation omitted). “The prejudice prong requires a petitioner to demonstrate that seriously
deficient performance of his attorney prejudiced the defense.” Id. at 1312–13. “The likelihood

25

of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S.
86, 112 (2011). A reasonable probability of a different result “is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Additionally, a movant is not entitled to habeas relief “when his claims are merely
conclusory allegations unsupported by specifics or contentions that in the face of the record are
wholly incredible.” Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (citations omitted).
“The allegations must be factual and specific, not conclusory. Conclusory allegations are simply
not enough to warrant a hearing.” Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1061
(11th Cir. 2011) (citing San Martin v. McNeil, 633 F.3d 1257, 1271 (11th Cir. 2011)). For a
movant proceeding pro se, the court will liberally construe the pleading, but he or she “must
suggest (even if inartfully) that there is at least some factual support for a claim; it is not enough
just to invoke a legal theory devoid of any factual basis.” Jones v. Fla. Parole Comm’n, 787 F.3d
1105, 1107 (11th Cir. 2015). “An evidentiary hearing may be necessary where the material facts
are in dispute, but a [movant] is not entitled to an evidentiary hearing when his claims are merely
conclusory allegations unsupported by specifics.” Pugh v. Smith, 465 F.3d 1295, 1300 (11th Cir.
2006) (citations omitted). Stated another way, “if a habeas petition does not allege enough
specific facts, that if they were true, would warrant relief, the petitioner is not entitled to an
evidentiary hearing.” Chavez, 647 F.3d at 1060 (citing Allen v. Sec’y Fla. Dep’t of Corr., 611
F.3d 740, 763 (11th Cir. 2010)). Further, because solemn representations at a plea hearing by a
defendant, his attorney, and the prosecutor “carry a strong presumption of verity” and “constitute
a formidable barrier in subsequent collateral proceedings,” a movant’s later “presentation of
conclusory allegations unsupported by specifics is subject to summary dismissal.” Blackledge v.

26

Allison, 431 U.S. 63, 73–74 (1977) (citing Machibroda v. United States, 368 U.S. 487, 495–96
(1962); Price v. Johnston, 334 U.S. 266, 286–87 (1948)).
B.

Analysis of Roberson’s Ineffective Assistance Claims

Roberson contends that Mr. Harrison should have objected to the two-level firearm
enhancement to his offense level under Section U.S.S.G. § 2D1.1(b)(1). (Doc. 328, p. 10.)
Roberson’s ineffective assistance claims arise out of the same misconceptions as his direct claims
against the firearms enhancement. He believes that the firearm enhancement was based on the
state charges pending against him rather than his relevant conduct in this case. He claims that Mr.
Harrison should have pointed out to the Court that the charges were “pending and no resolution
was found” and that Roberson was presumed “innocent until proven guilty” of the state charges.
(Id.) As explained above, the Court was well aware that the state charges against Roberson were
still pending and that Roberson had not been adjudicated guilty of those charges. (PSI, ¶¶ 30, 31.)
Further, the PSI explained that the charges in Telfair County would be dead docketed upon
sentencing in Roberson’s federal case. (Id. at ¶ 31.) Probation Officer Skarupa gave Roberson no
criminal history points, enhancements, or other additions to his Guidelines calculation due to the
fact that Roberson had state charges pending against him. (See id. at ¶ 29.) Probation Officer
Skarupa based the Section 2D1.1(b)(1) offense level enhancement not on the state charges or any
other criminal history but on the facts recited in the PSI as to Roberson’s offense conduct. (Id. at
¶ 12 (“Therefore, for the purpose of guideline calculations, Roberson is attributed with 1.4
kilograms of ‘ice’ and possessing two firearms in connection with quantities of drugs.”).) Further,
Judge Wood ordered Roberson’s sentence to run concurrent with any sentence “that might be
imposed with regard to the Clayton County case and the Telfair County case.” (Doc. 330, p. 12
(emphasis added).) Thus, there was no need for Mr. Harrison to point out to the Court that

27

Roberson had not been found guilty of the state charges and any argument to the contrary borders
on delusional.
Moreover, Mr. Harrison did not render ineffective assistance of counsel by declining to
object to the Section 2D1.1(b)(1) enhancement. Roberson’s arguments to the contrary are blind
to the actual facts of his case, ignore his own statements and the uncontroverted statements of
others, and disregard the fundamental operation of the Guidelines.

In addition, Roberson

testified at the plea hearing that he was satisfied with Mr. Harrison’s services and that he had no
complaints about Mr. Harrison whatsoever. (Doc. 331, p. 10.) Therefore, the Court should
reject Roberson’s attempts to contradict his own sworn testimony and plea hearing declarations.
See Blackledge, 431 U.S. at 73–74 (solemn representations at a plea hearing by a defendant, his
attorney, and the prosecutor “carry a strong presumption of verity” and “constitute a formidable
barrier in subsequent collateral proceedings,” thus a movant’s later “presentation of conclusory
allegations unsupported by specifics is subject to summary dismissal”).
As laid out in detail above, the sentencing phase of Roberson’s case confirms the validity
of the firearm enhancement and, thus, the reasonableness of Mr. Harrison’s representation.
Again, in the PSI, Probation Officer Skarupa explained that Roberson twice possessed a loaded
in pistol in close proximity to significant amounts of illegal drugs which Roberson admitted he
possessed with the intent to distribute. (PSI, ¶¶ 7, 11.) Roberson stated at the sentencing hearing
that he had the opportunity to read and review the PSI and discuss it with Mr. Harrison, and
Roberson personally stated that he had no objections to the factual statements in the PSI. (Doc.
330, p. 3.) Under these facts and the above-cited Eleventh Circuit precedent, it would have been
foolhardy for Mr. Harrison to object to the two-level enhancement under Section 2D1.1(b)(1).
Mr. Harrison had no obligation to advance an argument that had no legal merit. Diaz-Boyzo v.

28

United States, 294 F. App’x 558, 560 (11th Cir. 2008) (per curiam) (counsel not ineffective for
failing to pursue a non-meritorious issue.)
Furthermore, if Mr. Harrison had objected to the distribution enhancement, he would
have jeopardized the plea agreement and the benefits that Roberson received from it, including
the reduction in Roberson’s offense level for acceptance of responsibility. Additionally, despite
the daunting facts and precedent that Roberson’s case presented, Mr. Harrison did not sit idly by
during the sentencing hearing. Rather, he advanced numerous arguments for a sentence below
the Guidelines range and highlighted the mitigating evidence in Roberson’s case including his
contrition and cooperation. (Doc. 330, pp. 4–9.) This strategy would have been significantly
threatened by Mr. Harrison advancing a dubious argument that Roberson did not possess a
firearm in connection with his drug distribution activities. While Mr. Harrison’s efforts were not
successful in obtaining the below-Guidelines sentence that counsel argued for, they did compel
Judge Wood to sentence Roberson at the low end of the Guidelines range.
No competent attorney would have argued that Roberson could not receive a firearm
enhancement because the state charges against him had not yet been adjudicated. Such an
argument would contradict even an elementary understanding of the Guidelines and their
operation. Thus, Roberson has failed to establish Mr. Harrison’s efforts fell outside of the range
of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 56.
Moreover, even if Mr. Harrison had rendered ineffective assistance, Roberson has failed
to demonstrate prejudice. As laid out in detail above, Roberson’s relevant conduct in this case
clearly qualifies him for Section 2D1.1(b)(1)’s two-level enhancement for possession of a
firearm. Even now, other than conclusory and misplaced allegations, he fails to explain why he
should not have received the enhancement in his offense level. He does not credibly dispute the

29

fact that he possessed a firearm during his participation in the drug distribution conspiracy.
Therefore, Roberson has failed to show a reasonable probability that the outcome of his case
would have been different if Mr. Harrison had objected to the firearm enhancement.
For all of these reasons, the Court should DENY Roberson’s claims that his trial counsel
rendered ineffective assistance of counsel.
III.

Roberson’s Claim to a Mitigating Role Reduction
The United States Sentencing Guidelines provide for a decrease in a defendant’s offense

level when the defendant plays a minimal or minor role in any criminal activity. Specifically,
Section 3B1.2 provides:
Based on the defendant’s role in the offense, decrease the offense level as follows:
(a)

If the defendant was a minimal participant in any criminal activity,
decrease by 4 levels.

(b)

If the defendant was a minor participant in any criminal activity,
decrease by 2 levels.

In cases falling between (a) and (b), decrease by 3 levels.
U.S.S.G. § 3B1.2.
Prior to Roberson’s sentencing, the United States Sentencing Commission revised the
commentary to Section 3B1.2 but not the language of the actual Guidelines provision. See
U.S.S.G. app. C supp., amend. 794 (discussing the revised commentary). Amendment 794,
which became effective on November 1, 2015, made several revisions, including adding a “nonexhaustive list of factors” that the court should consider in determining whether to apply the
adjustment. Id. Under the revised version of the commentary,
[i]n determining whether to apply [a minimal or minor participant adjustment] or
an intermediate adjustment, the court should consider the following nonexhaustive list of factors:

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(i) the degree to which the defendant understood the scope and structure of
the criminal activity;
(ii) the degree to which the defendant participated in planning or
organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making
authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant’s participation in the
commission of the criminal activity, including the acts the defendant
performed and the responsibility and discretion the defendant had in
performing those acts;
(v) the degree to which the defendant stood to benefit from the criminal
activity.
U.S.S.G. § 3B1.2 cmt. n.3. The Commission also added commentary that “the fact that a
defendant performs an essential or indispensable role in the criminal activity is not
determinative.” Id. Rather, such a defendant may receive a mitigating role adjustment if he is
“substantially less culpable than the average participant in the criminal activity.” Id.
The Eleventh Circuit has held that these amendments to the commentary are clarifying
and not substantive amendments and that the amendments, therefore, apply retroactively on
direct appeal. United States v. Cruickshank, 837 F.3d 1182, 1194 (11th Cir. 2016) (citation
omitted).

However, the Court also stated that the amendments “continue to embrace the

approach” that the Eleventh Circuit took in its “leading case” concerning Section 3B1.2, United
States v. De Varon, 175 F.3d 930, 945 (11th Cir. 1999). Id. at 1192–94. Roberson appears to
argue that Amendment 794 was implemented after his PSI and sentence and that the Court
should apply it retroactively to reduce his sentence.

(Doc. 328, pp. 16–19.)

However,

Amendment 794 went into effect on November 1, 2015, prior to Roberson’s PSI on December 8,
2015, and his sentencing hearing on January 14, 2016. Thus, the Court has already considered

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Roberson’s sentence under the updated version of the commentary. Moreover, the Court should
reject Roberson’s claim for a minor role reduction several reasons.
A.

Roberson is not Entitled to a Section 3B1.2 Reduction Under any Version of
the Commentary to the Guidelines

The facts of Roberson’s case in no way warrant the minor role reduction.

When

determining a defendant’s role in the offense, a district court “must measure the defendant’s role
against the relevant conduct for which [he] has been held accountable.” De Varon, 175 F.3d at
940. “In other words, the district court must assess whether the defendant is a minor or minimal
participant in relation to the relevant conduct attributed to the defendant in calculating [his] base
offense level.” Id. at 941. Probation Officer Skarupa only attributed to Roberson the ice and
pistols that were seized from him and the ice that Roberson discussed personally possessing with
Defendant Smith. (PSI, ¶ 12.) Thus, Skarupa “conservatively” attributed Roberson with only
the drugs and firearms that Roberson directly possessed. (Id. at ¶¶ 7, 9, 11, 12.) The Court
adopted this attribution at the sentencing hearing. (Doc. 330, p. 3.) Because the Court only
considered Roberson’s actual drug possession as relevant conduct and not the conduct of his
coconspirators, he cannot point to the larger conspiracy of his co-Defendants and argue that he
played a minimal role relative to that larger enterprise. United States v. Ellwood, 188 F. App’x
935, 942 (11th Cir. 2006) (per curiam) (citing De Varon, 175 F.3d at 944).
Given that Roberson was only held accountable for the drugs he possessed, the Court was
well within its discretion to conclude that Roberson played a significant or important role as to
those drugs. Id. Indeed, when considering the factors in the revised commentary to Section
3B1.2, it would be absurd for the Court to find that Roberson played a minimal role in the
relevant transactions. Roberson was the direct supplier of ice who provided Defendant Smith
with up to half an ounce of ice on a weekly basis for one month. (PSI, ¶ 10.) He was twice

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found to be in direct possession of significant quantities of ice as well as cash, firearms, and
other tools of the drug trade. (Id. at ¶¶ 6–12.) Finally, Roberson was caught discussing his
receipt of a large quantity of ice with Defendant Smith, encouraging Smith to purchase the drug,
and pointedly telling Defendant Smith, “You need to hang out with me more. I hustle more shit
and make more goddamn money than you can shake a stick at.” (Id. at ¶ 9.)
In light of the undisputed facts before the Court at sentencing, Roberson’s argument that
the Court should have reduced his offense level by two levels under Section 3B1.2 has no basis
in law or fact. Thus, the Court should DENY this claim on the merits.
B.

Roberson Cannot Raise his Guidelines Claim in his Section 2255 Motion

Moreover, even if Roberson’s claim that that the Court should have reduced his offense
level under Section 3B1.2 had merit, he cannot raise that argument in his Section 2255 Motion.
As explained above, Section 2255 is not intended to be “a substitute for direct appeal,” and thus,
non-constitutional claims “can be raised on collateral review only when the alleged error
constitutes a ‘fundamental defect which inherently results in a complete miscarriage of justice
[or] an omission inconsistent with the rudimentary demands of fair procedure.’” Burke, 152
F.3d at 1331 (alteration in original) (quoting Reed, 512 U.S. at 348).

Further, “[a]ny

miscalculation of the guideline range cannot be a complete miscarriage of justice because the
guidelines are advisory.” Spencer, 773 F.3d at 1140. Roberson’s claim that the Court should
have applied Section 3B1.2 at his sentencing hearing is not a constitutional one. Furthermore,
this claim does not indicate that he suffered a complete miscarriage of justice or that his
sentencing proceeding was tainted by an omission inconsistent with the rudimentary demands of
fair procedure.

Thus, because guideline miscalculation claims are not cognizable through

Section 2255, the Court must DISMISS Roberson’s claim.

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C.

Roberson’s Collateral Attack Waiver Bars his Claim that the Court Erred at
Sentencing

The collateral attack waiver in Roberson’s plea agreement provides yet another barrier to
this claim. As laid out in detail above, given the information regarding Roberson’s collateral
attack waiver in his plea agreement and his discussion of the waiver with Judge Wood during his
Rule 11 colloquy, the waiver is valid and enforceable. Having found the collateral attack waiver
to be valid, the Court turns to the question of whether the waiver covers Roberson’s argument
that the Court erred by failing to give him a downward departure for his role in the offense.
Through the plain language of the collateral attack waiver, Roberson agreed not to collaterally
attack his conviction and sentence, including through a Section 225 motion, “on any ground and
by any method.” (Doc. 246, p. 8.) The “only exception” allows Roberson to file claims based
on ineffective assistance of counsel. (Id.) Thus, Roberson’s collateral attack waiver clearly
covers his claim that the Court erred in calculating his Guidelines range and in effect provides
yet another reason for the Court to DISMISS Roberson’s claim that the Court erred by not
granting him a mitigating role reduction.
D.

Roberson Procedurally Defaulted his Mitigating Role Claims by Failing to
File an Appeal

Moreover, Roberson waived his claim that the Court should have given him a mitigating
role reduction because he did not challenge his sentence on appeal. The doctrine of procedural
default is detailed above in the analysis of Roberson’s firearm enhancement claims and need not
be rehashed herein. Put succinctly, Roberson did not file any appeal in this case, and “a
defendant generally must advance an available challenge to a criminal conviction or sentence on
direct appeal or else the defendant is barred from presenting that claim in a § 2255 proceeding.”
McKay, 657 F.3d at 1196. A showing of “cause and prejudice” can overcome a defendant’s

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default. Id. However, Roberson makes no effort to demonstrate cause and prejudice as to his
failure to appeal the issue of a mitigating role reduction. He does not claim any ineffective
assistance of counsel or other barrier prevented him from raising this issue on appeal. Thus, he
cannot now raise the issue through a Section 2255 Motion.
For all of these reasons, the Court should DISMISS Roberson’s claim that the Court
erred by failing to reduce his offense level by two levels under Section 3B1.2.
IV.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Roberson leave to appeal in forma pauperis and a Certificate

of Appealability. Though Roberson has, of course, not yet filed a notice of appeal, it is proper to
address these issues in the Court’s order of dismissal.

Pursuant to Rule 11 of the Rules

Governing Section 2255 Cases, “the district court must issue or deny a certificate of
appealability when it issues a final order adverse to the applicant.” (emphasis added); see also
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma
pauperis is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Roberson, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). An in forma pauperis action is frivolous, and thus
not brought in good faith, if it is “without arguable merit either in law or fact.” Napier v.

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Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States, Nos. 407CV085,
403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a certificate of appealability is issued.

A certificate of

appealability may issue only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a certificate of appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a petitioner must show
“that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Roberson’s pleadings and the Government’s Response
and applying the Certificate of Appealability standards set forth above, there are no discernable
issues worthy of a certificate of appeal; therefore, the Court should DENY the issuance of a
Certificate of Appealability. If the Court adopts this recommendation and denies Roberson a
Certificate of Appealability, Roberson is advised that he “may not appeal the denial but may seek
a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” Rule
11(a), Rules Governing Section 2255 Cases in the United States District Courts. Furthermore, as

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there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith.
Thus, the Court should likewise DENY Roberson in forma pauperis status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DENY Roberson’s Motion to
Vacate, Set Aside, or Correct his Sentence. (Doc. 328.) Further, I RECOMMEND that the
Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal. Additionally, the Court should DENY Roberson a Certificate of Appealability and in
forma pauperis status on appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final

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judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Roberson and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of April,
2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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